Succeeding on HPARB Reviews of Cautions and SCERPS
When a health professional receives a Caution or Specified Continuing Education and Remediation Program ("SCERP") following the investigation of a complaint about their professional conduct or competence, they have the right to request a review of that decision. But when will such a decision be overturned? We have reviewed all of the decisions by the Health Professions Appeal and Review Board (the “HPARB”) relating to professionals’ requests to review decisions to impose a Caution or SCERP to determine what makes for a successful Review. This blog outlines the common characteristics of a successful complaint review by the HPARB.
ICRC’s Disposition of a Complaint
Complaints about regulated health professionals are investigated by their College’s Inquiries, Complaints and Reports Committee (the “ICRC”). Following its investigation, the ICRC will issue a decision. From the perspective of the professional (also called member or registrant), the worst outcome is a referral of allegations of professional misconduct to the College’s Discipline Committee. No review lies from this outcome. In contrast, the best outcome for the professional is a decision to take “no further action”, or failing that, “advice and recommendations”. These decisions do not result in regulatory action that is published on the College’s public register, and as such will have little impact on the professional except to the extent that they are considered by the ICRC in the event of a future complaint or report. Other common dispositions, and the ones that result in professionals applying to the HPARB for a review of the decision, include imposing a caution to remind the professional of their duties and/or requiring a member to complete a SCERP to improve their practice. Details about a caution and/or SCERP are posted on the College’s public register, and may therefore harm the professional’s reputation, possibly even giving rise to future complaints. It is these dispositions that professionals often seek to challenge by applying to the HPARB for a review of the decision.
HPARB’s Review of a Complaint
Under s. 29(1) of the Health Professions Procedural Code (“Code”), the member can request for HPARB to review the ICRC’s decision. HPARB’s review is limited to an examination of the adequacy of the ICRC’s investigation and the reasonableness of the ICRC’s decision. An adequate investigation “does not need to be exhaustive”, but the ICRC must use “essential information” to make an “informed decision” about the concerns in the complaint. A reasonable decision does not require HPARB to “arrive at the same decision” as the ICRC, but the ICRC’s decision must be “transparent, intelligible and justified.”
If on a review the HPARB finds that the decision to impose a SCERP or Caution was unreasonable, or that the ICRC’s investigation was inadequate, it may set aside the ICRC’s decision and replace it with its own decision (e.g., remove the caution and/or SCERP and take no further action) or return the decision to the ICRC for further investigation or reconsideration with directions. Due to the highly deferential standard of review, such outcomes are relatively rare, and even a victory in these cases can be pyrrhic, such as where the HPARB simply returns the matter to the ICRC for reconsideration or further investigation and the ICRC disposes of the complaint in the same manner. Indeed, the professional could even be faced with a worse outcome, as the ICRC can decide to impose a more onerous SCERP, a harsher caution, or even make a referral to the Discipline Committee. Accordingly, professionals must carefully consider whether to seek review of a decision of the ICRC, but there are certainly cases where such a review is warranted.
In 14 complaint reviews advanced by professionals over the past five years, the HPARB found that the ICRC’s investigation was inadequate or its decision was unreasonable, and directed the removal of the caution and/or the SCERP. The following is a summary of circumstances that led the HPARB to find an investigation inadequate or a decision unreasonable.
1. The ICRC’s Investigation is Inadequate
In several cases, the HPARB has found an investigation inadequate where the ICRC investigated a complaint against a member relating to conduct that occurred before they were registered with the College.
2. The ICRC’s Decision is Not Reasonable
HPARB has found the ICRC’s decision to order a Caution or SCERP to not be reasonable because the ICRC:
failed to maintain “its role as a neutral decision maker” (e.g., the ICRC escalated the complaint wherein the complaint no longer reflected the complainant’s experience or intention)
failed to consider relevant documents (e.g., the Record of Investigation) and, consequently, made unsupported conclusions
failed to inform the member of its new concerns separate from the complaint and failed to provide the member with an opportunity to respond accordingly
failed to consider the member’s remedial efforts
relied on documentation with “incorrect information” and, consequently, misunderstood the facts
relied on information that it considered “highly contradictory”
considered the member’s history on matters unrelated to the concerns raised in the complaint
considered a policy version that was not applicable to the timeframe of the complaint
contradicted a peer assessor’s findings
put “unrealistic and potentially unobtainable level of expectations” on the member
issued serious dispositions not proportionate to the concerns raised in the complaint, and
made conclusions inconsistent with its other findings.
Takeaways
If the ICRC imposes a caution against a member or requires a member to complete a SCERP, the member can request HPARB to review the decision. If HPARB finds the investigation inadequate and/or decision not reasonable, it can require the ICRC to set aside the caution and/or SCERP. While every decision will turn on its own facts, a review of the ICRC’s reasons for decision can help identify errors that can found a successful review application. On the other hand, if the ICRC’s decision is set aside but simply referred back to the ICRC for further investigation or reconsideration, success on a such a review may be better avoided.
Please connect with us for assistance with requesting a complaint review and for advice on what can realistically be achieved through such a review.